Judge Roberts, as one of my colleagues was just saying, I hope we're done before my birthday ends. I welcome you to the court. Delighted to have you here, you and your family. I want to congratulate you on your lifetime of service thus far and looking forward to future service that you'll have for this great land.
I recall the meeting that you and I had in my office, as many of the members have here have as well, and enjoyed them. You said two things in there that I particularly took away and hung on as an indicator of yourself and how you would look at the courts and also what America needed from our courts.
One of the statements was that we need a more modest court. And I looked at that and I thought that's exactly, I think, the way the American people would look at the situation today.
We need a more modest court, a court that's a court but not a super-legislature, as you've heard others refer to, or is in a different role, but is a court.
And that's what it needs to be and that's what we need to have: one that looks at the constitution as it is, not as we wish it might be, but as it is, so that we can be a nation that is a rule-of-law nation.
You had a second point that was very apt, I thought, when you talked about the courts and baseball. You drew the analogy of those two together, which was apt, I thought. And you said it's a bad thing when the umpire is the most watched person on the field.
And I guess that appealed to me as well from the standpoint of where we are today's American governance, where the legislature can pass the bill, the executive can sign it, but everybody waits and holds their breath until how the court is going to look at this and how it's going to interpret it, because it seems as if the court is the real mover of what the actual law is.
And that's a bad thing. The umpire should call the ball fair or foul -- it's in or it's out -- but not get actively involved as a player on the field.
And, unfortunately, we've gotten to a point today where in many respects the judiciary is the most active policy player on the field.
I was struck by your nomination and what you said when you were nominated that you, quote, had a profound appreciation for the role of the court in our constitutional democracy.
And that's something I think we all respect and we look for in what we need to do.
Democracy I believe loses its luster when justices on the high court who are unelected and not directly accountable invent constitutional rights and alter the balance of governmental powers in ways that find no support in the text, the structure or the history of the Constitution.
Unfortunately, the court in recent years I believe has gone into that terrain.
In our system of government, the Constitution contemplates that federal courts will exercise limited jurisdiction. They should neither write nor execute the laws, but simply say what the law is, in quoting Marbury v. Madison.
The narrow scope of judicial power was the reason the people accepted the idea that the federal courts could have the power of judicial review; that is, the ability to decide whether a challenged law comports with the Constitution.
The people believe that the courts would maintain their independence and at the same time would recognize their role by deferring to the political branches on policy choices.
Legitimacy based on judicial restraint was a concept perhaps best expressed by Justice Felix Frankfurter, appointed by Franklin Delano Roosevelt.
And he said this: Courts are not representative bodies. They are not designed to be a good reflex of a democratic society. Their judgment is best informed and therefore most dependable within narrow limits. Their essential quality is detachment, founded on independence. And history teaches that the independence of the judiciary is jeopardized when courts become embroiled in the passions of the day and assume primarily responsibility in choosing between competing political, economic and social pressures.
Primary responsibility for adjusting the interests which compete of necessity belongs to the Congress. Yet courts today have strayed far beyond this limited role. Constitutionalists from Hamilton to Frankfurter surely would be shocked at the broad sweep of judicial activity today.
Just listen to some of them.
Federal courts are redefining the meaning of marriage, deciding when a human life is worthy of protection, running prisons and schools by decree, removing expressions of faith in the public square, permitting the government under the takings clause to confiscate property from one person and give it to another in the name of private economic development and then interpreting our American Constitution on the basis of foreign and international law.
Perhaps the Supreme Court's most notorious exercise of raw political power came in Roe v. Wade and Doe v. Bolton, two 1973 cases based on false statements which invented a Constitutional right to abortion. The issue had been handled by the people through their elected representatives prior to that time.
Since that time, nearly 40 million children have been aborted in America, 40 million lives that could be amongst us but are not, beautiful, innocent faces that could bless our existence and our families and our nation, creating and expanding a culture of life.
If you're confirmed, your court will decide if there is a constitutional right to partially deliver a late-term child and then destroy it.
Partial-birth abortion is making its way to the Supreme Court. The federal courts have thus far found laws limiting partial-birth abortion unconstitutional.
Now, it should be noted again, if Roe is overturned, it does not ban abortion in America. It merely returns the issue to the states so states like Kansas or California can set the standards they see right and just.
The principle of stare decisis will be involved. The Supreme Court frequently has overruled prior precedents, I would note. A case founded in my state, Brown v. the Board of Education, which overruled Plessy v. Ferguson, fits within a broad pattern -- evidenced since the founding of the Supreme Court, revising previous decisions.
I would note for you that, by some measure, the Supreme Court has overruled itself in 174 cases, with a substantial majority of those cases involving constitutional, not statutory, issues.
One final thought. In a just and healthy society, both righteousness and justice travel together. Righteousness, the knowledge of right and wrong, good and evil, that's something that's that's written within our hearts. Justice is the application of that knowledge.
Everybody in our representative form of government tries to do both of these -- righteousness and justice -- within the boundaries set for each of us. No one branch has unlimited control. The Supreme Court has boundaries, too. There are checks and balances on what it can deal with and what it can do.
For instance, the court cannot appropriate money. That power's specifically left to the Congress in the Constitution, no matter how right or just the court may view the cause.
We all are constitutional officers, sworn to uphold the Constitution. Yet each branch has separate functions which the other branch can check and balance.
The total system functions best when each branch does its job but not the others.
We arrived at an important moment with your nomination to serve as chief justice of the United States. Quite a title.
Will you serve, as Hamilton assured the people, by exercising judgment rather than will?
By review of your many legal writings over the past quarter century, it leads me to believe that this is the case. I hope that this instinct will be proven correct during the days to come; that, you, Judge Roberts, will be confirmed to serve as the first justice among equals; and that the noble legacy of the justice that you once served will be honored.
God bless you and your family.
Frankly, I found it insulting. We're all big kids now and we don't need to be talked to like children. 